Whether it is necessary to give suggestion in cross examination in Civil proceeding?

As far as the argument of suggestion having not been given to PW2 is concerned, I may mention that the tenor of the entire cross examination by the respondent of PW2 is to challenge his statement; though of course no specific suggestion is given that he has lied on the aspect of payment of Rs. 4,25,000/- in cash in his presence. However, I am of the opinion that in a civil trial which is based on pleadings, there is no need for such suggestions to be given. The respondent in his written statement had already denied the said payment and it was for the appellant to prove the same. The practice of giving suggestions in cross examination to witnesses is of criminal trials where there are no pleadings and the defence is built up by giving such suggestions. However unfortunately the said practice of criminal trials has crept into the civil trials also to the extent that most of the cross examinations being in the form of suggestions alone and which take considerable time. The purport of cross examination is to challenge the testimony and/or to falsify the witness or his credit worthiness and not to give suggestions to the effect that each and every deposition in examination-in-chief is false. Similarly, a party in a civil trial is not required to in cross examination put its case to the witness as the same as aforesaid already exists in the pleadings.

IN THE HIGH COURT OF DELHI

RFA 205/2004

Decided On: 10.07.2013

Sher Mohammad Vs. Mohan Magotra

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation: 2013 SCC OnLine Del 2530.

Print Page

When recall of witness is not permissible to fill up the lacunae in civil litigation?

 In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after cross- examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.

17. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for re-examination-in- chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the Court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out.

Supreme Court of India

Vadiraj Naggappa Vernekar (D) Th. ... vs Sharad Chand Prabhakar Gogate on 24 February, 2009

Bench: Altamas Kabir, Cyriac Joseph

Citation:AIR 2009 SC 1604,2009 SAR(CIVIL)403,

2009(5) MHLJ 142

Print Page

Whether non framing of issues is fatal?

It is indeed a matter of common knowledge that whenever any party asserts its right, and pursuant thereto claims any enforcement of reliefs which is seriously disputed by the other side, then, obviously the burden to establish the same by leading the evidence is on the party asserting such rights. The Civil Procedure Code and the law of evidence are clear enough on the point to tell us that when facts are in dispute, the trial Court in the first instance is bound to frame the issues of facts and/or of law (as the case may be) as warranted under Order XIV. Rule 1 of the Civil Procedure Code, 1908. Such framing of issues in the first instance would facilitate the applicant to lead necessary evidence in support of the claim and the reliefs prayed pursuant thereto. In the second instance, it will avail the opponent an opportunity to confront and contradict the particular witness and thereafter to lead the evidence (if he so desires) to bring home the defence pleaded and in the third instance, enlighten the trial Court to test and appreciate the same in proper perspective to enable it to reach just decision.It is hardly required to be told that issues are back-bone of a suit. They are also the lamppost which enlightens the parti es to the proceedings, the trial Court and even the appellate Court - as to what is the controversy, what is evidence and where lies the way to truth and justice. Further framing of issues is absolutely essential to a right decision of the case and therefore this bounden duty of framing of issues primarily rests on the trial Court. Thus, taking into consideration the overall facts and circumstances of the present case, it is very clear that the opponent has not led any evidence in support of the claim and contentions. Under such circumstances, the question that arises for the consideration is two fold--firstly, whether such factually contradicted and contested point can ever be decided on the basis of bare assertions on the one hand and denial on the other hand? And secondly, whether the Court in its turn also without any evidence before it to enlighten its way to reach a just decision can arbitrarily decide the same? The obvious answer to this question is 'no'. This quick way of doing justice is nothing but quickening justice! Such arbitrary and haphazard summary procedure unnecessarily protracts the proceedings before the Court, because the aggrieved party is bound to challenge the same before the higher forums which in turn is bound to allow such patently illegal order and remand the same, resulting into multiplicity of the proceedings, physical and financial hardships, besides other inconvenience to the parties concerned, burdening the workload of the Courts at all stages costing precious public time and money, etc. etc. At the cost of repetition, it may once again be stated that the Courts are bound to frame issues of facts and/or that of law, as the case may be, when parties cross their swords disputing each other's right and thereafter only, decide the controversy between them on the basis of the evidence led before it. The trial Court must have an opportunity to test, appreciate and judge for itself the evidence produced before it, before it takes a particular decision one way or the other. In such cases, if the party asserting right does not lead evidence in support of its claim, it has to go home and thank itself. The oral assertions and production of some documents by themselves, by no stretch of imagination can throw any light on the controversy so as to enable the Court to do the real and substantial justice between the parties concerned. What is permissible to the High Court in its extra-ordinary jurisdiction under Article 226 of the Constitution of India is certainly not permissible to the subordinate Courts while deciding the applications of such a nature. In substance, what this Court emphasises is well propounded elementary principles of the Civil law which hardly requires to be further elucidated.

Equivalent Citation : 1994 GLH (2)403

IN THE HIGH COURT OF GUJARAT

Decided On: 20.12.1993

 State of Gujarat Vs. Jaipalsingh Jaswantsingh Engineers and Contractors

Hon'ble Judges/Coram:
K.J. Vaidya, J.

Print Page